Rudy Giuliani, Donald Trump's personal lawyer, argues in a Daily Caller column that the Supreme Court should block the president's Senate trial by declaring his impeachment unconstitutional. The impeachment articles, he notes, allege that Trump abused his power and obstructed Congress. Since "abuse of power and obstruction of Congress are not crimes of any kind," Giuliani says, the House clearly exceeded its power to impeach the president for "treason, bribery, or other high crimes and misdemeanors."
This argument is so dubious that Giuliani himself does not believe it. During a June 2018 interview on NBC's Meet the Press, Chuck Todd asked Giuliani about the possibility that Trump could preemptively pardon himself for any crimes that might be uncovered by Special Counsel Robert Mueller's investigation of Russian interference in the 2016 presidential election. Giuliani noted that "there's nothing that limits the presidential power of pardon [for] a federal crime." But he added that "the president of the United States pardoning himself would just be unthinkable" and "it would lead to probably an immediate impeachment." In other words: A presidential self-pardon would not be a crime, but it would still be an impeachable offense.
George Washington University law professor Jonathan Turley, the lone Republican witness at the House Judiciary Committee's December 4 hearing on impeachment, repeatedly made the point that "high crimes or misdemeanors" are not limited to violations of criminal statutes. Turley, who harshly criticized the impeachment process as rushed and incomplete, warned that abuse-of-power allegations can be dangerously amorphous when detached from the elements required to prove a crime. He nevertheless conceded that "the use of military aid for a quid pro quo to investigate one's political opponent, if proven, can be an impeachable offense."
Turley noted that James Madison, although he opposed including "maladministration" as grounds for impeachment, later said the process was meant to address "the incapacity, negligence or perfidy of the chief Magistrate." Alexander Hamilton likewise said impeachment was aimed at "those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust." The phrase "or other high crimes and misdemeanors," Turley observed, "reflects an obvious intent to convey that the impeachable acts other than bribery and treason were meant to reach a similar level of gravity and seriousness (even if they are not technically criminal acts)."
People can and do argue about whether the allegations against Trump—that he perverted foreign policy for personal ends by pressuring the Ukrainian government to announce an investigation of a political rival and then obstructed the House's inquiry into his conduct—"reach a similar level of gravity and seriousness" as bribery or treason. Turley himself has repeatedly said that temporarily withholding congressionally approved military aid from Ukraine as part of a scheme to discredit former Vice President Joe Biden, a leading contender to oppose Trump in this year's election, would, if proven, meet that standard.
The House obviously reached the same conclusion. Does the Supreme Court have the authority to second-guess that judgment, as Giuliani contends? Article I, Section 2 of the Constitution says the House "shall have the sole power of impeachment," while Section 3 says "the Senate shall have the sole power to try all impeachments." On the face of it, that does not leave much room for the Supreme Court.
"The Constitution is silent on the Supreme Court's role in an impeachment except to provide that [the Senate trial] is presided over by the chief justice," Giuliani concedes. "However, the Constitution is also silent on the court's power to declare federal and state laws and government action unconstitutional. It was determined by former Chief Justice John Marshall that judicial review is implicit as the only logical answer to constitutional standoffs between the legislative and executive branches or between the federal and state governments. The reasoning of Marbury v. Madison certainly supports the court having the power to declare an impeachment as unconstitutional if it is an overreach of the carefully balanced separation of powers."
But while judicial review of "federal and state laws and government action" is meant to ensure that they stay within constitutional limits, the only limit cited by Giuliani here is a specious one: his newfound belief that impeachment must be based on criminal violations. The Supreme Court itself has rejected Giuliani's analogy. "The Judiciary, and the Supreme Court in particular, were not chosen to have any role in impeachments," Chief Justice William Rehnquist, who had published a book on the subject the previous year, said in a 1993 decision involving the impeachment of Walter Nixon, a federal judge.
Nixon argued that his trial, during which a committee heard evidence against him and delivered a report to the full Senate, violated the provision saying "the Senate shall have the sole Power to try all Impeachments." The justices unanimously rejected the judge's plea for the Court's intervention. Seven justices agreed that Nixon's claim was "nonjusticiable," meaning it involved a political question not subject to judicial review.